Case 1:18-cv-02849-ELH Document Filed 11/26/18 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT MARYLAND
STATE MARYLAND,
Plaintiff,
Case Number: 18-CV-02849-ELH
UNITED STATES AMERICA, etal.,
Defendants.
______________
AMICUS CURIAE BRIEF JUDICIAL WATCH, INC. OPPOSITION PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION
Amicus Curiae Judicial Watch, Inc., counsel, respectfully submits this brief
opposition Plaintiff State Marylands motion for preliminary injunction. The State
Marylands naked attempt wage political battle the courts should denied.
Judicial Watch non-partisan, educational foundation that seeks promote
transparency, integrity, and accountability government and fidelity the rule law. Judicial
Watch regularly files amicus curiae briefs advance its public interest mission. Judicial
Watch purpose filing this brief highlight for the Court the interesting preliminary issues
raised the State Marylands motion. Judicial Watch does not believe the Court needs
reach the flimsy merits argument dismiss the motion.
Contrary the State Marylands assertion, the Attorney General Succession Act
way mandates that the Deputy Attorney General becomes the Acting Attorney General. The
statute says may. U.S.C. 508(a) (In case vacancy the office Attorney General, his absence disability, the Deputy Attorney General mav exercise all the duties that
office. (emphasis added)). the extent the Vacancies Reform Act constitutional and the
State Maryland does not argue otherwise the Attorney General Succession Act does not
prohibit the VRAs application this case.
Case 1:18-cv-02849-ELH Document Filed 11/26/18 Page
Upon Attorney General Jeff Sessions resignation, President Trump appointed
Matthew Whitaker Acting Attorney General. Less than week later, Maryland Attorney
General Brian Frosh, behalf the State Maryland, asked the Court preliminarily enjoin
the automatic substitution Whitaker for Sessions, one the original, seven defendants this
case. discussing why filed this highly unusual motion, Frosh explained, [T]his guy, Mr.
Whitaker, has extreme views and thats dangerous itself. Ann Marimow, Maryland
challenges legality Whitakers appointment acting U.S. attorney general, The Washington
Post (Nov. 13, 2018, available https://www.washingtonpost.com/local/public-safety/marylandto-chall enge-legality- of-whitakers-appointment-as-acting-us-attorney-general/2018/ 11/
3356062a-e747-l le8-a939-9469fl 166f9d_story.html).
The procedural posture this case anything but ordinary. The State
Maryland seeking prevent routine, automatic procedural device for substituting
successor for past officeholder party. Fed. Civ. 25(d) advisory committee notes.
addition, the day after filing its motion, the State Maryland filed amended complaint.
Based the redline version the document (ECF 8-1), the sole purpose the amendment was name two additional defendants: Whitaker and Rod Rosenstein. Whereas Whitaker the
appointed Acting Attorney General, Plaintiff asserts Rosenstein the actual Acting Attorney
General. Plaintiff therefore currently suing three individuals their official capacity
Attorney General: Sessions, Whitaker, and Rosenstein. Regardless how the Court rules the
pending motion, either Whitaker Rosenstein will named twice defendant this
action. The State Marylands motion, therefore, appears moot.
Even the amended complaint does not moot its request, the State Marylands
motion fails because its lawsuit against Attorney General Sessions, his official capacity
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Case 1:18-cv-02849-ELH Document Filed 11/26/18 Page
attorney general. not against him his personal capacity. There nothing for the Court
do. Substitution automatic. Fed. Civ. 25(d) advisory committee notes (The rule will
apply any action brought form against named officer, but intrinsically against the
government the office the incumbent thereof whoever may from time time during
the action.).
Because this case official capacity lawsuit (as well against the United
States and the Department Justice), Supreme Court precedent suggests the facto officer
doctrine would apply. The facto officer doctrine confers validity upon acts performed
person acting under the color official title even though later discovered that the legality
that persons appointment election office deficient. Ryder United States, 515 U.S.
177, 180 (1995). The doctrine springs from the fear chaos that would result from multiple
and repetitious suits challenging every action taken every official whose claim office could open question and seeks protect the public insuring the orderly functioning the
government despite technical defects title office. Id. (citation and quotations omitted).
The fear multiple and repetitious legal challenges envisioned the Supreme
Court Ryder has become reality over the past three weeks. Not only has the State
Maryland filed this novel motion, but one its attorneys, Thomas Goldstein, filed similar
motion with the Supreme Court. Notice Court (ECF 12). fact, portions the two motions
are substantially similar. addition, three Senators have filed lawsuit seeking almost identical
relief that being sought the State Maryland here: declaration that Whitaker not the
Acting Attorney General and injunction preventing Whitaker from performing the functions
and duties the Office the Attorney General. Complaint for Declaratory and Injunctive
Relief, Blumenthal Whitaker, Case No. 18-cv-02664 (D.D.C., filed November 19, 2018).
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Case 1:18-cv-02849-ELH Document Filed 11/26/18 Page
Moreover, briefing the same issue also occurred the U.S. Court Appeals for the District Columbia. See re: Grand Jury Investigation, Case No. 18-3052.
Besides the active litigation, other state attorneys general and city attorneys have
indicated that they are thinking about raising the issue other courts around the country.
Because Judicial Watch concerned these legal challenges are nothing more than coordinated
effort political opponents President Trump, Judicial Watch recently sent public records
request the Maryland Office the Attorney General seeking:
All communications between any official, officer, employee Marylands
Office the Attorney General and any official, officer, employee other
states office the attorney general about the appointment Matthew
Whitaker Acting Attorney General;
All communications between any official, officer, employee Marylands
Office the Attorney General and any officer, employee, member the
Democratic Attorneys General Association about the appointment Matthew
Whitaker Acting Attorney General;
All communications between any official, officer, employee Marylands
Office the Attorney General and any other non-State Maryland individual
entity about the appointment Matthew Whitaker Acting Attorney
General; and
All communications between any official, officer, employee Marylands
Office the Attorney General and Thomas Goldstein any employee
Goldstein Russell, P.C. about Michaels Sessions using arguments made
Marylands Motion for Preliminary Injunction Substitute Defendant
Maryland United States. short, the State Marylands motion political document. not serious
legal challenge. Unlike most the cases where courts conclude the doctrine does not apply, the
State Marylands motion does not challenge the appointment judge (or even officer)
currently adjudicating its case. Bhatti Federal Housing Finance Agency, 2018 U.S. Dist.
LEXIS 112892, **38-43 (D. Minn. July 2018). The Attorney General one of(now) nine
defendants, including the United States. Since there has been change administration, who
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Case 1:18-cv-02849-ELH Document Filed 11/26/18 Page
precisely the Acting Attorney General little consequence. The relevant factor that
President Trump remains president.
For all these reasons, Plaintiffs motion for preliminary injunction should
denied.
Dated: November 26, 2018
Respectfully submitted,
/s/ Robert Popper
Robert Popper. No. 12607
JUDICIAL WATCH, INC.
Counsel for Plaintiff
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